CHAPTER XXXVI.

OF AFFIDAVITS.

HAVING, in pursuance of the original arrangement of the present Treatise, conducted the reader through a suit in Chancery in all its ordinary stages, from the bill to the final decree, and having directed his attention to the practice arising in consequence of those incidental occurrences by which a suit may become defective or abated, the author proposes now, in further prosecution of his plan, to direct the practitioner's attention to those applications which may be made to the Court in the progress of a cause for the purpose of obtaining from it orders not immediately necessary to the regular progress of the suit, but for which a necessity arises from some collateral matter consequent upon the pleadings or process or other circumstances of the case. Applications of this nature are usually termed interlocutory applications, and the investigation of the rules which govern the Court in granting them, will form the subject of some of the following chapters: but it frequently happens that applications of this nature are supported by evidence, not elicited by interrogatories in the ordinary manner of taking evidence in the Court, but offered to the Court in the form of a written declaration, either by a party making the application, or a stranger, (which form of evidence has frequently been alluded to in the present Treatise,) the writer conceives that before he enters into the consideration of interlocutory applications in general, it will not be considered out of its place here, if he devotes a few pages to the discussion of the rules by which the practice relating to affidavits is regulated.

An affidavit then is a declaration upon oath or affirmation,1 be

A person professing to be a Quaker or Moravian may make affidavit upon solemn affirmation, see 7 & 8 Will. III. c. 34; 3 & 4 Will. IV. c. 49; which privilege has since been extended by 1 & 2 Vict. c. 77, to persons who, having been Quakers or Moravians, have ceased to belong to such sects, but continue to have conscientious objections to the taking of an oath. Where the affidavit is on affirmation, and the person taking it does not certify that the affirmant is a Quaker or other person allowed by law to make affirmation, the affidavit can be of no avail. Ringgold v. Jones, 1 Bland, 90.

fore some persons having competent and lawful power and authority to administer the same.1

3

It was necessary, until the Order of 1842, that all affidavits made within ten miles of Lincoln's Inn Hall, should be sworn before a Master in ordinary, either at the public office, or at the Master's chambers: or if out of the usual office hours, at a Master's private residence; but now the 7th Order of October, 1842, without superseding the jurisdiction of the Master, has directed, "That pleas, answers, affidavits or affirmations, whereon to ground process of contempt, affidavits or affirmations required to be annexed to bills, and oaths or affirmations as to the carriage of pleas, answers, examinations, or depositions of witnesses taken before Commissioners in the country, may be sworn, affirmed, or attested upon honor, however, before the Clerk of Records and Writs, or before the Clerk of Enrolments in Chancery, as occasion may require, for the better despatch of business."

With respect to affidavits taken in the country, the 33d Order of 1833, directs, "that the Masters extraordinary of this Court, shall be at liberty in future to take any affidavit, or do any other act incident to the office of Master extraordinary in Chancery, at any place which is distant not less than ten miles from the Hall in Lincoln's Inn, any existing Order to the contrary notwithstanding."

It is to be observed, also, that the Master extraordinary, before whom the affidavit is sworn, must not be a solicitor in the cause,

1 Hind. 451. In Haight v. Morris Aqueduct, 4 Wash. C. C. 601, it was held that an affidavit in Chancery, not sworn before a Judge of the Court, or a commissioner appointed to administer an oath, could not be received in evidence. An affidavit in New York may be sworn to before a State senator, he being es officio a Judge of the Court for the Correction of Errors, which is a Court of record. Craig v. Briggs, 4 Paige, 548. An affidavit taken before a commissioner of deeds de facto, for a city, who is exercising such office under color of an appointment by the Governor and Senate, may be read in a suit between other persons; and the Court will not inquire collaterally into the legality of such appointment. Parker v. Baker, 8 Paige, 428. Where nothing appears to show that an affidavit, was taken out of the jurisdiction of the officer before whom it was sworn, it will be presumed to have been taken within the limits of his jurisdicion. Ib. • The Taxing Master has also jurisdiction to take affidavits in matters relating to costs, ante, p. 1514, 9th Order of October, 1842.

3 Hind. 451.

* But this rule is confined in New York to the solicitor on record. An affidavit may be sworn to before any proper officer, although he is counsel for one of the

and that, in a case before Lord Hardwicke, where the affidavits, in support of a petition, had been sworn before the petitioner's solicitor, the petition was dismissed, and the costs were directed to come out of the solicitor's pocket. And in the case of Wood v. Harpur,2 Lord Langdale, M. R., rejected affidavits, because they had been sworn before a Master extraordinary, who acted as clerk to the plaintiff's attorney.

And by stat. 1 Will. IV. c. 36, s. 15, rule 20, it is provided, that, "In order to relieve persons in prison from the expense of a Master's attendance to take affidavits or answers, the Lord High Chancellor shall, by one or more commission or commissions under the Great Seal, under or in respect of which no fee shall be payable, nominate and appoint the warden or keeper or other chief officer of any prison or prisons which the City of London or the bills of mortality, and their deputies, to the Master extraordinary of the High Court of Chancery, for the purpose of taking and receiving such affidavits and answers as any person or persons within such prison or prisons shall be willing or desirous to make and for no other purpose"; and it is further provided, "That the person so taking such affidavit or answer, shall, in respect thereof, be entitled to receive a fee of one shilling and no more."

Moreover, the Court of Chancery is in the habit of receiving affidavits made by parties resident out of the jurisdiction, though necessarily not sworn to before any of those functionaries, provided it is shown that the persons before whom they are sworn are persons who, by the law of the country in which the affidavit is sworn, are authorized to administer an oath; thus an affidavit sworn before a Master in ordinary or a Master extraordinary of parties, or is a partner of the solicitor in the cause. The People v. Spalding, 2 Paige, 326. The provision of the Revised Statutes of New York, prohibiting a Master from acting as such in a cause, in which he is counsel, does not extend to the mere taking of an affidavit. Ib.; M'Laren v. Charrier, 5 Paige, 530. 1 In re Hogan, 3 Atk. 812.

3 Beav. 290.

3 An affidavit taken before a Master of the Court of Chancery in New Jersey, at a place out of the State, will not be allowed to be read in that Court; the Master has no authority to take an affidavit out of the State. Lambert v. Maris, Halst. Dig. 173. But an affidavit sworn to before a Master in Chancery in another State, who was not a commissioner appointed by the State where the affidavit was offered, was held regular in Allen v. State Bank, 1 Dev. & Bat. 7. In Ramy v. Kirk, 9 Dana, 267, an affidavit made out of the State was held not admissible.

the Court of Chancery in Ireland has been permitted to be read in this Court. So, also, has an affidavit sworn before a Baron of the Exchequer in Scotland.2 It should be mentioned here, that in Hyde v. Whitfield,3 Lord Eldon is reported to have said, that although the Courts have, of late, acted upon affidavits made before the Superior Courts in Scotland, he did not recollect an instance of the Court taking notice of an affidavit sworn before a Justice of the Peace in Scotland. It appears, however, that his Lordship's memory in that case was not quite accurate, for, in Pinkerton v. The Barnsley Canal Company, he made an order, upon an application which was opposed, that the Master should, in a matter pending before him, be at liberty to receive an affidavit sworn before a Justice of the Peace in Scotland, upon its being verified to the satisfaction of the said Master, that the person before whom the affidavit purported to have been made was, according to the laws of Scotland, qualified to administer an oath, and upon the signature of such person to the jurat of the affidavit being verified. Upon the authority of this case, Lord Chief Baron Alexander permitted an affidavit, sworn by a defendant before a magistrate in Scotland, to be read upon a motion in the Court of Exchequer, and it may be assumed that the Court of Chancery would be guided by the same precedent.6

The directions contained in Lord Eldon's order in Pinkerton r. The Barnsley Canal Company, point out very clearly the terms upon which the Court will receive an affidavit sworn out of the jurisdiction of the Court, viz., that it should be shown that the person before whom the affidavit purports to have been sworn, is, according to the law of the country in which it is sworn, qualified to administer an oath, and that the signature of such person should be properly verified.

Upon this principle the Court acted in Chicot v. Lequesne, in 1 Sergison v. Sergison, cited 1 J. & W. 296; and Annesley v. Earl of Anglesey, 1 Dick. 90.

Braham v. Bowes, 1 J. & W. 296.

19 Ves. 344.

3 Y. & J. 277, notis.

See Ramy v. Kirk, 9 Dana, 267, as to an affidavit sworn to before a Justice of the Peace of another State.

Ellis v. Sinclair, 3 Y. & J. 273.

• Ubi supra.

1 Dick. 150.

which it ordered an affidavit as to the production of books by a party resident in Holland, to be sworn before a notary public at Amsterdam, with the intervention of a proper magistrate, if necessary by the law of Holland, to the administration of the oath.

The object in requiring the affidavit, in the above case, to be sworn before a notary public, was to enable the notary to verify the transaction under his official seal,1 "for, as by the law of nations a notary public has credit everywhere, the Court will give credit to him." 2

It is, however, to be observed that although the Court will, in cases of this description, give credit to the fact, as certified under the notarial seal of a notary public, it will require some evidence that the person, whose seal is affixed, actually fills the character he assumes; this may be effected either by the production of an affidavit by some person resident in this country who can depose to the fact of his being a notary public, or by the certificate of some public officer of the country in which the transaction took place, competent to give such certificate, which certificate must, however, be verified by the affidavit of some person resident here, conusant of the fact that the public officer who certifies is what he assumes to be.4

Thus, where a certificate that an affidavit was sworn before a magistrate in Prince of Wales's Island, in the East Indies, was signed and sealed by the magistrate himself and by a notary public, the Lord Chancellor thought the evidence not sufficient; observing that, although a notary public by the law of nations has credit everywhere, and the Court, therefore, will give credit to him, yet it was necessary to prove that the other person was a magistrate.5

So, also, where an affidavit purported to be sworn before the mayor of Georgetown, in Columbia, in the United States, whose

1 See Sir J. Walrond v. Jacob, 12 Vin. Ab. Ev. p. 123; A. b. 51, pl. 2, 8 Mod. 323; where the Court held that a plaintiff who was in Holland might make affidavit there, and get it attested by a notary public, and that it should be admitted as evidence to hold the defendant to special bail.

Hutcheon v. Mannington, 6 Ves. 823. The Court will also admit the certificate of a notary, under his seal, in proof of the execution abroad of a power of attorney to receive money from the Accountant-General.